IN THE UNITED STATES DISTRICT COURT ROME … 72A (Rev.8/8 2) ... after posting some form of secured bail or bond . (Id I116.) ... Smith to "act with complete independence from the

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

MAURICE WALKER, on behalf of himself and others similarly situated.

Plaintiff,

V. CIVIL ACTION FILE NO.:

4:15-CV-0170-HLM

CITY OF CALHOUN, GEORGIA,

Defendant.

ORDER

This case is before the Court on the Court's April 7,

2017, Order [56] and on the Court's own Motion.

AO 72A

(Rev.8/8

2)

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 1 of 30

I. Background

A. Factual Background

The Court incorporates the Background portion of its

January 28, 2016, Order relating to Plaintiffs allegations

and Defendanf s materials into this Order as if fully set forth

herein. (Order of Jan. 28, 2016 (Docket Entry No. 40) at 2-

25.)

Defendant submitted a second affidavit from Matthew

Chad Silvers in opposition to Plaintiffs renewed request for

a preliminary injunction. (Second Aff of Matthew Chad

Silvers (Docket Entry No. 63).) Mr. Silvers states that, prior

to January 28, 2016, the Municipal Court of Calhoun,

Georgia (the "Municipal Court") allowed for individuals to be

released from pre-trial detention in the Gordon County Jail


by posting a secured pre-trial bond, which could be made

via the payment of currency, the posting of property, or the

employment of a local surety. (Id H 9.) According to Mr.

Silvers, during a period of approximately fifteen months

immediately before January 28, 2016, the Municipal Court

issued twenty-seven bench warrants for individuals who

posted one of the forms of the secured pre-trial bonds.

(Id 1110 & Ex. E.) After January 28, 2016, when the Court

issued its first preliminary injunction Order, "the Municipal

Court immediately initiated a policy of having all detained

individuals released only on a pre-trial recognizance bond

issued." (Id H 11.) Mr. Silvers states that, during a period

of approximately fifteen months afterward, the Municipa

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Court issued eighty-five bench warrants for individuals

released on recognizance. (Id H 12 & Ex. F.)

Between October 28, 2014, and January 28, 2016,

5,374 cases were docketed in the Municipal Court (Second

Silvers Aff. H 13), while 5,559 cases were docketed in the

Municipal Court between January 29, 2016, and May 8,

2017 (id T114). Mr. Silvers notes that the Municipal Court

issued thirty-four bench warrants for failure to appear for the

cases filed between October 28, 2014, and January 28,

2016, and that each of those defendants were released

after posting some form of secured bail or bond. (Id I116.)

In contrast, the Municipal Court issued eighty-five bench

warrants for failure to appear for the cases filed between

January 29, 2016, and May 8, 2017, and each of those


defendants had been released on his or her own

recognizance after initial arrest. ( Id H 17.) Mr. Silvers

asserts that, after January 28, 2016, "the number of bench

warrants issued for individuals who failed to appear before

the Municipal Court increased by approximately one

hundred and fifty percent (150%) in merely 15 months."

(Id 1120.)

Mr. Silvers notes that the Honorable Suzanne

Hutchinson Smith serves as the Chief Judge of the

Municipal Court, that Judge Smith has served as the Chief

Judge ofthe Municipal Court since approximately 1995, and

that the position is presently budgeted to pay $2,000 per

month. (Second Silvers Aff. H 21.) Judge Smith also

serves as a Superior Court Judge for the Cherokee Judicial


Circuit, and she has served in that position since April 2014.

(Jd TI 22.) Defendant's Mayor and City Council have not

appointed another individual to preside over the Municipal

Court, and they have never appointed associate judges.

(Id TI23.) On the rare occasions when Judge Smith is not

available to preside over a regularly-scheduled Municipal

Court session, she has appointed either the Probate Judge

of Gordon County or Gordon County's County Attorney to

serve as Judge pro tempore for that session of court. (Id

H 24.) According to Mr. Silvers, "[a]t all times, these

individuals abide by all of the policies and procedures

established by Judge Smith in her absence." (Id)

Mr. Silvers states that, during the seventeen years that

he has worked for the Municipal Court, he has known Judge


Smith to "act with complete independence from the Mayor

and City Council," and he has "never witnessed any attempt

by the governing authority to change the way that the court

is administered, or have any input regarding the issue of

bail or bond." (Second Silvers Aff. H 25.) According to Mr.

Silvers, during the time that he has served as deputy clerk,

"only the court staff or the Solicitor have contacted [Judge

Smith] directly with regard to any issues or questions

regarding inmates and their release, whether pre-trial or

post conviction." (Id.)

B. Procedural Background

The Court incorporates the procedural background

portions of its earlier Orders into this Order and adds only

those procedural background facts that are relevant to the

7


instant Order. After the United States Court of Appeals for

the Eleventh Circuit vacated the Court's Order granting a

preliminary injunction in favor of Plaintiff based on lack of

specificity and remanded the case to the Court for further

proceedings, the Court entered an Order directing the

Parties to notify the Court as to how the Parties believed the

Court should proceed with this case. (Order of Apr. 7, 2017

(Docket Entry No. 56).) Plaintiff responded by indicating

that the Court should simply enter a more specific

injunction. (See generally PL's Notice (Docket Entry No.

57).) Defendant filed a response indicating that it disagreed

with Plaintiff's proposed approach, and requested time to

respond to Plaintiffs Notice. (See generally De fs Notice

(Docket Entry No. 58).) The Court then entered an Order

8 AO 72A

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establishing a briefing schedule. (Order of April 24, 2017

(Docket Entry No. 59).) Defendant filed a response arguing

against granting a preliminary injunction, and presented

exhibits that included affidavits. Defendant's briefs on

appeal, a recording of the oral argument before the

Eleventh Circuit, and a number of amici curiae briefs filed

on appeal. (Notice of Filing (Docket Entry No. 62)

(containing CD of oral arguments); Resp. PL's Renewed

Request Prelim. Inj. (Docket Entry No. 64); Notice of Filing

(Docket Entry No. 65) (containing amicus curiae briefs).)^

Plaintiff filed a reply disputing the arguments raised by

Defendant, and noting that the Court should simply enter a

more specific injunction. (See generally Reply Supp. PL's

The Court has reviewed all of the materials presented by Defendant.


Notice (Docket Entry No. 66).) The Court finds that the

matter is ripe for resolution.

II. Discussion

The Court finds that no hearing is necessary, as there

are no significant factual disputes or credibility

determinations relevant to the request for a preliminary

injunction. Cumulus Media. Inc. v. Clear Channel

Common's. Inc.. 304 F.3d 1167, 1178 (11th Cir. 2002)

(internal quotation marks and citation omitted); McDonald's

Corp. V. Robertson. 147 F.3d 1301, 1313 (11th Cir. 1998).

The Court also agrees with Plaintiff that the appropriate

course of action here is for the Court to issue a more

specific injunction that complies with Federal Rule of Civil

Procedure 65(d). See S.E.C. v. N. Am. Clearing. Inc.. Case

10


No.: 6:08-cv-829-Orl-35KRS, 2013 WL 12173711, at *1-3

(M.D. Fla. Apr. 3, 2013) (entering a more specific injunction

after a remand from the Eleventh Circuit due to a failure to

comply with Rule 65(d)). The Court reaffirms its previous

Order granting Plaintiffs Motion for Preliminary Injunction,

and incorporates the Discussion portion of that Order into

this Order as if fully set forth herein. (Order of Jan. 28,

2016, at 47-73.)

This is not an opportunity for Defendant to re-litigate

the merits of the underlying preliminary injunction Order;

however, for Defendant's benefit, the Court will briefly

address the arguments Defendant raises in its response.

First, the Court again rejects Defendants contention that

the Standing Bail Order is not a policy of Defendant for §

11


1983 purposes. With all due respect to Defendant, the new

evidence presented in Mr. Silver's Second Affidavit simply

does not warrant a different conclusion than the Court

reached in its January 28,2016, Order. The Court therefore

rejects this argument.

Second, the Court rejects Defendant's contention that

the Standing Bail Order, as it is presently worded, is

constitutional. The Court notes that the Standing Bail Order

is certainly an improvement over the policy in effect prior to

the Standing Bail Order, and, to that extent, the Standing

Bail Order is a step in the right direction. The Standing Bail

Order, however, still violates the Constitution insofar as it

permits individuals who have sufficient resources to post a

bond (or to have one posted for them) to be released

12


immediately, while individuals who do not have those

resources must wait forty-eight hours for a hearing. The

Court rejects Defendant's contention that the Standing Bail

Order's forty-eight hour waiting period for a bond hearing is

constitutional because Gerstein v. Pugh, 420 U.S. 103

(1975), set a presumptively reasonable forty-eight hour

probable cause deadline following arrest. See Odonnell v.

Harris Cty..Tex.. Civil Action No. H-16-1414, — F. Supp. 3d

—, —, 2016 WL 7337549, at *17 (S.D. Tex. Dec. 16, 2016)

("The 48-hour probable-cause-hearing standard . . . is not

a safe harbor for the defendants."). The primary issue here

is that the Standing Bail Order establishes a mechanism by

which non-indigent arrestees may obtain immediate release,

while indigent arrestees must wait an additional forty-eight

13


hours to have an opportunity to obtain release, simply

because of those arrestees' financial condition. This is

impermissible.^

^Defendant also is concerned about what level of scrutiny applies. Defendant is correct that, generally, an individual's indigence does not make that individual a member of a suspect class. However, case law from the Supreme Court and the Eleventh Circuit "make clear that detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications." Odonnell v. Harris Cty.. Tex.. Civil Action No. H-16-1414, — F. Supp. 3d —, —, 2017 WL 1735456, at *64 (S.D. Tex. Apr. 28, 2017) (collecting cases). Indeed, under Williams v. Illinois. 399 U.S. 235 (1970), Tate v. Short. 401 U.S. 395 (1971), Bearden v. Georgia, 461 U.S. 660 (1983), and Pugh v. Rainwater, 557 F.2d 1189 (Sth Cir. 1977), vacated on other grounds. 572 F.2d. 1053 (5th Cir. 1978) (en banc), "an absolute deprivation of liberty based on wealth creates a suspect classification deserving of heightened scrutiny." Odonnell. 2017 WL 1735456, at *64 (footnote omitted). "At a minimum, heightened scrutiny requires a court to evaluate the government's legitimate interest in a challenged policy or practice and then inquire whether there is a sufficient 'fit' between the government's means and ends." i d at *66. "At a maximum, [c]lassifications created by state action which disadvantage a suspect class or impinge upon the exercise of a fundamental right are subject to strict scrutiny, and will be upheld only when they are precisely tailored to serve a compelling state interest." \± (alteration in original) (internal

14


The Court also rejects Defendant's contention that

abstention under Younger v. Harris. 401 U.S. 37 (1971),

appl ies here. When determining whether

Younger abstention applies, courts ask: (1) whether the

case will interfere with "an ongoing state judicial

proceeding"; (2) whether "the proceedings implicate

important state interests"; and (3) whether there is "an

adequate opportunity in the state proceedings to raise

constitutional challenges." Middlesex Cty. Ethics Comm. v.

Garden State Bar Ass'n. 457 U.S. 423, 432 (1982). As an

quotation marks and citation omitted). Admittedly, "[sjtate and local governments have a compelling interest in assuring the presence at trial of persons charged with a crime." Jd (internal quotation marks, citation, and footnote omitted). Given that Plaintiff bears the "burden to show a likelihood of success on the merits, the court applies the tailoring requirement of intermediate scrutiny." Jd at *67.

15


initial matter, Plaintiff and the other similarly-situated

individuals are not challenging the merits of their

prosecutions, but rather, are challenging the legality of their

pretrial detention~an issue that cannot be raised in the

criminal prosecutions. See Gerstein, 420 U.S. at 108 n.9

(concluding that Younger absention did not apply where the

request for an "injunction was not directed at the state

prosecutions as such, but only at the legality of pretrial

detention without a judicial hearing, an issue that could not

be raised in defense ofthe criminal prosecution"); Odonnell,

2016 WL 7337549, at *19 ("The plaintiffs challenge the

legality of detaining misdemeanor arrestees who are

otherwise eligible for release pending trial or guilty plea

without timely judicial consideration ofthe inability to pay a

16


bail bond. Resolving this issue does not affect the merits of

subsequent criminal prosecutions. The inability to pay bail

cannot be raised as a defense in a subsequent criminal

prosecution."). Plaintiff and the other similarly-situated

individuals would not have an adequate opportunity to raise

their constitutional challenges before the Municipal Court,

and Younger abstention consequently does not apply.

See Rodriguez v. Providence Cmty. Corrs.. Inc.. 155 F.

Supp. 3d 758, 766 (M.D. Tenn. Dec. 17, 2015) ("The harm

alleged-that probationers do not receive inquiries into

indigency as required by the Fourteenth Amendment-has

been inflicted before a probationer could voice any

constitutional concerns. This alleged constitutional infirmity

could be remedied without affecting the underlying state

17


court judgments. Accordingly, Younger abstention is

inappropriate."). The Court therefore rejects this argument.

Finally, the Court concludes that Defendant's

arguments concerning an increase in failures to appear are

immaterial. As an initial matter, the Court's January 28,

2016, Order did not require Defendant to release all

arrestees on their own recognizance. The Court simply

ordered Defendant to "implement post-arrest procedures

that comply with the Constitution" or offer indigent arrestees

release "on their own recognizance or on an unsecured

bond." (Orderof Jan.28, 2016, at73.) Although the Court

acknowledges that its lack of specificity may have caused

confusion on Defendant's part, the Court did not intend to

require Defendant to release each and every arrestee on

18


his or her own recognizance. Thus, the increase in arrests

for failure to appear does not, in and of itself, affect the

propriety of injunctive relief. Indeed, other alternatives exist,

including unsecured bonds, in which an arrestee need not

pay money in advance but may be released with an

obligation to pay the amount listed in the bail schedule if the

arrestee fails to appear for his or her scheduled court date.^

The Court rejects Defendant's contention that Georgia law does not provide for unsecured bonds in misdemeanor cases. O.C.G.A. § 17-6-1 (i) provides that "the term 'bail' shall include the releasing of a person on such person's own recognizance." O.C.G.A. § 17-6-1 (i). Further, Georgia Uniform Municipal Court Rule 18.3 provides that "[bjail may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper." Ga. Unit. Mun. Ct. R. 18.3. Surely, those conditions could include an unsecured bond. Indeed, Defendant's Standing Bail Order already provides that "[a]ll persons charged with violations of the Code of Calhoun, Georgia who have no outstanding failure to appear arrest warrant from the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of the State of Georgia, shall be released on an unsecured appearance bond

AO 72A

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Importantly, nothing in the January 28, 2016, Order

purported to require release of all arrestees on their own

recognizance, as the Order addressed only indigent

arrestees."^ Non-indigent arrestees may still be required to

post bail in accordance with the bail schedule in the

Standing Bail Order Finally, as Plaintiffs point out, even if

Defendant decided to retain secured bonds, it could

distinguish arrestees who are able to pay from indigent

arrestees without requiring anyone to remain in jail for forty-

in the amount established by [the Standing Bail Order's] bail schedule." (Standing Bail Order (Docket Entry No. 29-5) at 6-7.)

Thus, arguments that the Court's January 28, 2016, Order somehow is intended to abolish or undermine the entire system of monetary bail in this country are clearly misplaced. The Court has no problem with monetary bail or with the bail bond industry in general. The Court's concern in this case is for indigent arrestees who cannot afford to post bail or pay a surety a percentage of a bond. Those individuals would not be using the bail bond industry or system even if the Court declined to enter an injunction.

20


eight hours prior to a hearing. (Reply Supp. Notice at 11.)

During the booking process or shortly after booking,

Defendant could require arrestees who claim to be indigent

to complete a sworn affidavit, under threat of prosecution for

perjury or false statements, attesting to their financial

resources and their inability to pay. (Id) Defendant could

validly detain any individual who refused to sign the

affidavit, and it could require any arrestee with the financial

means to do so to post a monetary bond in accordance with

the Standing Bail Order. (Id) Defendant's argument

concerning an increase in failures to appear after the

January 28, 2016, Order does not warrant reconsidering

injunctive relief.

21


In sum, the Court concludes that none of Defendant's

arguments in its response to Plaintiff's Notice warrant

denying or reconsidering injunctive relief. The Court will

enter another, more specific, preliminary injunction.

III. Conclusion

ACCORDINGLY, the Court GRANTS Plaintiff's Motion

for Preliminary Injunction [4]. The Court ORDERS AS

FOLLOWS:

Defendant shall, unless and until otherwise ordered by

this Court, comply with the following:

(1) Defendant is prohibited from detaining indigent

misdemeanor or Calhoun Municipal ordinances arrestees

who are othenA/ise eligible for release but are unable,

22


because of their poverty, to pay a secured or money bail in

accordance with the Standing Bail Order.

(2) If an arrestee indicates that he or she is unable to

pay a secured or money bail, arresting officers, jail

personnel, or Municipal Court staff must, as soon as

practicable after booking verify the arrestee's inability to pay

a secured or money bail by means of an affidavit sworn

before an authorized official. The affidavit must give the

arrestee sufficient opportunity to swear to his or her financial

conditions, including the arrestee's monthly income and

expenses, the value of any assets that the arrestee has,

including money in bank accounts, real estate, or

automobiles, and the amount of any liabilities that the

arrestee may have, such as loans, liens, or other

23


obligations, and to the number of individuals living in the

arrestee's household. The affidavit also must give the

arrestee an opportunity to swear as to the amount of

financial security or funds that the arrestee would be able to

post or pay up front, from any source, including

contributions from family and friends, within twenty-four

hours of arrest. Finally, the affidavit shall give the arrestee

the opportunity to swear that he or she is indigent, meaning

that he or she earns less than 100 percent of the applicable

federal poverty guidelines.

(3) The standard for making an individualized

determination of indigency is, as set forth in the Standing

Bail Order, "that established by O.C.G.A. § 36-32-1 (f) and

(g), as defined by O.C.G.A. § 17-[12]-2(6)(A) regarding an

24


'indigent person' charged with a misdemeanor, violation of

probation, or a municipal code offense punishable by

imprisonment." (Standing Bail Order at 5.) Those

provisions "have established an 'indigent person' or

'indigent defendant' for appointed legal counsel as one

'earning less than 100 percent of the federal poverty

guidelines, unless there is evidence that the person has

other resources that might be reasonably used to employ a

lawyer without undue hardship on the person or his or her

dependents!.]'" (\± at 5-6 (alteration in original).) For

purposes of this Order, 100 percent of the federal poverty

guidelines shall specifically mean the guidelines published

in the Federal Register, 82 Fed. Reg. 8831-03, 2017 WL

395763 (Jan. 31,2017), and as may be further promulgated

25


and adopted for subsequent years in the Federal Register.

For 2017, the poverty guidelines for the forty-eight

contiguous States and the District of Columbia are as

follows: (1) for a one-person household, $12,060; (2) for a

two-person household, $16,240; (3) for a three-person

household, $20,420; (4) for a four-person household,

$24,600; (5) for a five-person household, $28,780; (6) for a

six-person household, $32,960; (7) for a seven-person

household, $37,140; (8) for an eight-person household,

$41,320.' 82 Fed. Reg. 8831-03, 2017 WL 395963 (Jan.

31,2017).

^For families or households with more than eight persons, $4,180 shall be added for each additional person to determine the poverty guidelines.

26


(4) If it appears, from the affidavit sworn by the

arrestee, that the arrestee is indigent, according to the

above standard, the arrestee shall be subject to release on

his or her own recognizance without making a secured bail

in accordance with O.C.GA § 17-6-1 (i), or subject to

release on an unsecured bond, with an obligation to pay the

amount listed in the bail schedule set forth in the Standing

Bail Order if the arrestee fails to appear for a scheduled

court date. Either the arresting officer or jail personnel, or,

if available, the Municipal Court Clerk or the Judge of the

Municipal Court, must conduct a review of the affidavit as

soon as practicable, or, at the latest, within twenty-four

hours after arrest to determine whether the arrestee meets

27


the indigency requirement set forth in paragraph (3) and is

subject to release.

(5) An arrestee who is released pursuant to paragraph

(4) shall be provided with written notice of the date for the

next proceeding or trial. The arrestee has the responsibility

of notifying the Clerk of the Municipal Court if he or she has

a change of residence or mailing address prior to

adjudication and sentencing, to ensure notice of any change

in the scheduled proceedings. Arrestees who fail to appear

for scheduled court proceedings may, of course, be subject

to arrest for failure to appear.

(6) As provided in the Standing Bail Order, "[ajll

persons charged with violations of The Code of Calhoun,

Georgia who have no outstanding failure to appear arrest

28


warrant from the City of Calhoun, or any other similar

governing authority duly established by the Georgia General

Assembly or the Constitution of The State of Georgia, shall

be released on an unsecured appearance bond in the

amount established by the" bail schedule set forth in the

Standing Bail Order. (Standing Bail Order at 6-7.)

(7) Nothing in this Order prohibits Defendant from

detaining an arrestee who is intoxicated, underthe influence

of drugs, or a danger to himself or herself or others such

that said arrestee would not otherwise be eligible for

release, until such time as that arrestee becomes eligible for

release. Defendant also may detain arrestees who are

subject to outstanding active warrants or other holds

preventing their release from detention, arrestees who are

29


subject to detention without bond under state or federal law,

and arrestees who refuse to cooperate in determining their

indigence. Further, nothing in this Order prohibits

Defendant from applying the bail schedule set forth in the

Standard Bail Order to arrestees who are financially able to

post bond in accordance with that schedule.

IT IS SO ORDERED, this the LL day of June, 2017.

SENI0I^UNITa3 STATES DISTRICT JUDGE

AO 72A

(Rev.8/8

2)

30


Documents

IN THE UNITED STATES DISTRICT COURT ROME … 72A (Rev.8/8 2) ... after posting some form of secured bail or bond . (Id I116.) ... Smith to "act with complete independence from the